ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI.
Const. Petition No.S-304 of 2005
Date Order with signature of Judge
Petitioner Pathan Mole & Company through Mr. Yousuf Moulvi, advocate.
Moulvi Muhammad Ishaq & others through Mr. Muhammad Hanif Chhattari, advocate.
…..
KHAWAJA NAVEED AHMED, J., This Constitution Petition in the rent matter has been filed by the petitioner/tenant and is pending since 04.6.2005. There are concurrent findings of the Courts below.
2. This is second round of litigation between the parties. The learned VIth Rent Controller Karachi (South) in Rent Case No.702/1999, filed by Moulvi Muhammad Ishaq against Pathan Mole & Company, after perusal of the pleadings of the parties had framed the following points for determination:-
(i) Whether there exists relationship of landlord and tenant in between the parties?
(ii) Whether the opponent company had failed/committed default in payment of rent with effect from January, 1999 onwards?
(iii) Whether the opponent has been using the case premises other than the purpose for which it was leased-out to the opponent or sub-let?
(iv) What should the order be?
3. The learned Rent Controller had replied all the three points in affirmative and had ordered ejectment of the petitioner vide order dated 31.10.2000. The petitioner had filed First Rent Appeal bearing No.1370/2001 in the High Court, which was transferred to the IInd Addl. District & Sessions Judge, Karachi (South), who was pleased to dismiss the Appeal for non-prosecution by his order dated 06.4.2001. The petitioner had filed restoration application under Order XLI, Rule 19, CPC, for restoration of the Appeal. The learned appellate Court by his order dated 13.7.2001 dismissed FRA No.1370/2001 (Old FRA No.1576/2000). Again the petitioner had moved a review application in the Court of IInd Addl. District & Sessions Judge, Karachi (South), which too was dismissed by the learned appellate Court by his order dated 13.8.2001. The petitioner had moved Const. Petition No.D-1837/2001 in the High Court of Sindh, Karachi, for setting aside the order of dismissal of Appeal dated 13.7.2001. The Division Bench of High Court had dismissed the Const. Petition No.D-1837/2001 in limine. Thereafter, the petitioner had preferred an appeal in Hon’ble Supreme Court of Pakistan against the judgment of the High Court dated 11.9.2001. The Hon’ble Supreme Court by its judgement dated 10.12.2001 was pleased to observe that since the dismissal of FRA No.1370/2001 (Old FRA No.1576/2000) was in default, the orders were set aside and the Appeal was restored for disposal on merits. On merits, the learned Vth Addl. District Judge, Karachi (South), had dismissed the Appeal on 04.2.2005. Thereafter this petition was filed by the tenant.
4. I have heard Mr. Yousuf Moulvi, for the petitioner/tenant and Mr. Muhammad Hanif Chhattari, for respondent No.1. The main contention raised by learned counsel for the petitioner is that there exists no relationship as landlord and tenant between the parties. He has stated that both the Courts below have flouted the provisions of Section 2(f) of Sindh Rented Premises Ordinance, 1979 by accepting the respondent No.1 as the landlord and allowing the ejectment application of the respondent No.1.
5. I have carefully perused the findings of the trial Court as well as learned Appellate Court on this issue. The record shows that Madressah Mazharul Uloom through its President Moulvi Muhammad Ishaq had filed the ejectment application against opponent-Pathan Mole & Company through Muhammad Yousuf. The said Muhammad Yousuf did not come forward and the present petitioner Dr. Muhammad Ismail has filed written statement claiming to be the Proprietor of Pathan Mole & Company. In his written statement, he has stated that Pathan Mole & Company has not taken the property on rent from Moulvi Muhammad Ishaq and they have taken on rent from one Jamaluddin. The record shows that Jamaluddin was the supervisor of Eidgah and Madressah Mazharul Uloom, which is the actual owner of the demised premises. The petitioner had produced rent receipt No.1845 with signatures of Jamaluddin. The petitioner had filed one authority letter of opponent-Pathan Mole & Company authorizing him to contest the case. Respondent No.1 has produced two letters, given to them by Muhammad Yousuf, President of Madressah Mazharul Uloom. He has also produced rent receipt as Exhibit A/2. The petitioner in his cross-examination had admitted that the opponent-Pathan Mole & Company is the tenant of Madressah Mazharul Uloom, Khaddah, Karachi. Nothing has come on record to prove that Dr. Muhammad Ismail or his father had taken the premises in question from Madressah Mazharul Uloom through one Jamaluddin on rent. The petitioner had admitted that Madresah Mazharul Uloom is the landlord and opponent-Pathan Mole & Company is the tenant. The learned Rent Controller has dealt with this issue very satisfactorily. Similarly, learned Vth Addl. District Judge, Karachi, (South) had up-held the findings of the learned Rent Controller on Issue No.1.
6. On the point of default, learned Rent Controller as well as the appellate Court have held that the tenant had stopped paying the rent from January, 1999 to the landlord. The President of the applicant-Madressah Mazharul Uloom in order to prove the default has produced rent receipts as well as notices served by him upon the opponent through Muhammad Yousuf and had claimed that the last rent of the premises was Rs.163/- per month. The opponent-Pathan Mole & Company had paid the rent upto December, 1998 on the same rate. However, the tenant has claimed that they were depositing rent with the Nazir of this Court at the rate of Rs.125/- per month after one Jamaluddin had refused to accept the rent and rent sent to him through money order was also refused by him. The opponent-Pathan Mole & Company had produced with his written statement postal receipt, money order coupon and rent receipt, issued by the Nazir of the Court in Misc. Rent Case No.600/2000. The parties were subjected to cross-examination on this point. Dr. Muhammad Ismail during his cross-examination had admitted that the opponent-Pathan Mole & Company is tenant of applicant-Madressah Mazharul Uloom. The learned appellate Court has up-held the point of default against the tenant. The learned appellate Court observed that the tenant had started depositing monthly rent from January, 2000 onwards in MRC No.690/2000 in respect of the demised premises on 10.3.2000 after one year and seventy days, as such the default stands proved against the opponent-Pathan Mole & Company. The learned appellate Court had up-held the findings of the Rent Controller on this point.
7. There are concurrent findings of both the Courts below on both the issues and as such this Court in Constitutional Jurisdiction cannot enter into factual findings unless the findings are perverse, mala fide or fanciful. In the present case, the findings of both the Courts below are absolutely correct and do not need any interference from this Court. Accordingly, Const. Petition No.S-304/2005 is dismissed.
8. Above are the reasons of my short order dated 04.12.2007, by which I had dismissed the Petition in limine. However, the petitioner is granted sixty days time from 04.12.2007 to vacate the demised premises. On expiry of sixty days’ period the learned Rent Controller will issue writ of possession with police aid, order to break open the lock and without notice to the petitioner.
Karachi,
December 14, 2007 Judge